Cases & Developments - National Association of College and University Attorneys

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Date:
10/6/2023
Sacks v. Tex. S. Univ. (5th Cir. Oct. 3, 2023)
Opinion affirming dismissal. Plaintiff, a former professor of law at Texas Southern University, brought discrimination and retaliation claims against the school and multiple employees after she resigned alleging constructive discharge and retaliation after she filed a similar suit two years before. In affirming dismissal of plaintiff’s Title VII constructive discharge claim, the Fifth Circuit held that, even if “menial,” curricular changes, “extra faculty meetings,” and mandates of “new methods of attendance recording” were insufficient to allege factors that would make a reasonable person feel compelled to resign. Her retaliation claims failed because she had not alleged sufficient facts to show that her prior suit was the cause of new mandates and procedures in the law school. Finally, the court also dismissed her claims under §1983 against a colleague who “threw her hair into [plaintiff’s] face in the law school lobby” and yelled at her in a church parking lot, finding that these allegations indicated a personal conflict rather than action under color of law.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
10/6/2023
Sharma v. Bd. of Trs. of the Univ. of Ill. (N.D. Ill. Sep. 29, 2023)
Memorandum Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a former administrative employee at the University of Illinois at Chicago College of Medicine, brought discrimination claims against the University and multiple officials after he was placed on paid administrative leave, required to undergo a fitness for duty evaluation, and not reappointed following multiple complaints of threatening and hostile behavior toward colleagues. In granting summary judgment, the court found plaintiff offered no admissible evidence that the University’s stated concern with his behavior was pretextual.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
10/6/2023
Waesche v. Embry-Riddle Aeronautical Univ. (D. Ariz. Sep. 29, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former full-time, non-tenured Instructor of Russian Language at Embry-Riddle Aeronautical University, brought contract and discrimination claims against the University after it declined to renew her contract citing low enrollments. A Faculty Grievance Committee recommended extending her full-time status because her termination letter was signed by the wrong person and issued prior to her annual evaluation, though it found no evidence that her non-renewal was discriminatory, arbitrary, or capricious. In granting summary judgment to the University, the court found that plaintiff could not establish damages because her assertion that her contract would have been renewed if the University had completed her faculty evaluation was speculative. Plaintiff’s discrimination claim failed for lack of evidence that any similarly situated comparators were treated more favorably.
Topics:
Discrimination, Accommodation, & Diversity | Employee Discipline & Due Process | Faculty & Staff | Race and National Origin Discrimination
Date:
10/6/2023
Lowery v. Tex. A&M Univ. Sys. (S.D. Tex. Sep. 29, 2023)
Opinion and Order granting Defendant’s Motion to Dismiss. Plaintiff, a tenured professor at the University of Texas, brought claims against Texas A&M University, alleging that it discriminates against white and Asian male applicants because it allegedly reserved positions for underrepresented minority candidates in job searches, maintained a faculty fellows program that promotes diversity, and the faculty senate adopted a resolution supporting the goal of promoting diversity. Plaintiff, however, had not yet applied for a position at Texas A&M. In dismissing plaintiff’s claims, the court found that (1) he lacked standing because he had not applied for a position; (2) his case is moot in light of subsequent legal developments, including the Supreme Court’s decision in Students for Fair Admissions v. Harvard and the passage of SB 17 concerning diversity-and-inclusion initiatives at public universities in Texas; and (3) his claims would not be ripe before SB 17 takes effect.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Sex Discrimination | Sex Discrimination in Employment
Date:
10/6/2023
Wu v. Ma (D. Mass. Sep. 28, 2023)
Memorandum and Order granting Defendant’s Motion to Dismiss. Plaintiff, a former Ph.D. student from China at Worcester Polytechnic Institute (WPI) who had been diagnosed with Major Depressive Disorder, brought disability discrimination, tort, and contract claims against WPI after it processed an administrative withdrawal and terminated her student visa. While enrolled, plaintiff was hospitalized first for a serious suicide attempt and, two months later, again following expressions of suicidal thoughts. Plaintiff also alleged that a fellow Ph.D. student subjected her to emotional manipulation and spread rumors about her among peers and research supervisors. In granting WPI’s motion to dismiss her disability discrimination claims, the court found her allegation that WPI was inflexible with its leave of absence policy was vague, noting that plaintiff also alleged she had declined an offer of a reduced academic load after her first hospitalization. Turning to her claim that WPI was negligent in not protecting her from her fellow student’s conduct, the court declined to find such a duty, noting that (1) plaintiff was a graduate student and an adult “in all respects under the law,” and (2) WPI did not have notice of the alleged conduct to trigger a special duty until immediately prior to her second hospitalization. In similarly dismissing her claim that WPI breached its contractual obligations by not enforcing its Code of Conduct to protect her from the fellow student, the court noted that she only pointed to aspirational expectations in the Code rather than a specific promise.
Topics:
Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Litigation, Mediation & Arbitration | Sexual Misconduct | Students | Tort Litigation
Date:
10/6/2023
Loreto v. Ariz. Bd. of Regents (D. Ariz. Sep. 07, 2023)
Report and Recommendation granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, an employee of the University of Arizona, brought disability discrimination and retaliation claims against the University and her former supervisor after she resigned her position and the University contested her application for unemployment compensation. Plaintiff, who was subsequently rehired for a new position, alleged that when she needed frequent restroom breaks as she recovered from a recent surgery, her supervisor denied her request for a temporary exemption from a restroom preapproval policy and delayed approval of her individual requests for restroom breaks. The U.S. Magistrate Judge recommended dismissal of plaintiff’s discrimination and hostile work environment claims, finding them time-barred. Turning to her retaliation claim, the Magistrate Judge found that the portion of her claim related to the University’s opposition to her unemployment compensation was timely, that this opposition was an adverse action, and that it was sufficiently close in time to her request for restroom accommodations to allege causation.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation
Date:
10/6/2023
EEOC Request for Comment on Proposed Enforcement Guidance on Harassment in the Workplace (Oct. 2, 2023)
U.S. Equal Employment Opportunity Commission (EEOC) Notice of availability and request for comment on Proposed Enforcement Guidance on Harassment in the Workplace. The proposed Enforcement Guidance on Harassment in the Workplace updates EEOC guidance in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County and other recent trends and developments. Comments are due on or before November 1, 2023.
Topics:
Discrimination, Accommodation, & Diversity
Date:
10/6/2023
ACE Comment Letter on DOL/IRS/HHS NPRM on Requirements Related to the Mental Health Parity and Addiction Equity Act (Oct. 4, 2023)
Comment Letter from the American Council on Education (ACE) and 18 other higher education associations to the Department of Labor, Internal Revenue Service, and Health and Human Services on their Notice of Proposed Rulemaking (NPRM) on “Requirements Related to the Mental Health Parity and Addiction Equity Act.” Noting that emergency waivers instituted during the COVID-19 pandemic to permit interstate care via telehealth have now expired, the letter encourages the regulating agencies to “find ways within their authority to support provision of behavioral health services to students enrolled in higher education institutions,” including via telehealth services, and to recommend to Congress that it fund measures to address student mental health and authorize the interstate provision of behavioral telehealth services for students enrolled in postsecondary institutions.
Topics:
Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Students
Date:
10/6/2023
ACE Comment Letter to DOJ re: Website Accessibility NPRM (Oct. 3, 2023)
Comment Letter from the American Council on Education (ACE) and 23 other higher education associations to the Department of Justice on its Notice of Proposed Rulemaking (NPRM) on “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.” While expressing support for the objectives of online accessibility, the comment letter identifies concerns with the NPRM’s two-year timeframe for establishing compliance, its criteria for determining which entities are large or small, the limited benefit of an exception for password-protected web content for which no student with a declared disability is registered, and high compliance costs for institutions of higher education.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Technology | Technology Accessibility
Date:
9/29/2023
U.S. Dep.’t of Education Report on Increasing Diversity and Opportunity (Sep. 28, 2023)
U.S. Department of Education Report on “Strategies for Increasing Diversity and Opportunity in Higher Education. The report calls on college and university leaders to take action to promote diversity and opportunity in the wake of the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al. It considers strategies leaders implement in the areas of recruitment, admissions, affordability, and retention and completion.
Topics:
Admissions | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Students

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